Closer to Consensus

Closer to Consensus

Closer to Consensus

I am heartened by
Ben's agreement
that any legislative initiatives should await the next administration and should not be driven by election-year pressures (as the MCA was). Such delay would also have the virtue of allowing the legislature to see just how the habeas system is working here and what might be needed to supplement the district court's handiwork.

As for whether such a statutory supplement will be beneficial or necessary come June 2009: I doubt it. Not a very extensive amendment, anyway.

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Ben argues that the habeas proceedings will now occur "with few known rules and procedures." I don't quite understand this. It's not as if this is the first time that habeas courts will ever have considered allegations of unlawful executive detention. There are plenty of rules and procedures. Indeed, there are hardly any sets of rules and procedures more well-established in our law than those that apply to habeas corpus proceedings. When asked at oral argument what would happen in such proceedings, Seth Waxman's response was (appropriately) as boilerplate as it gets:

[In] the cases in front of Judge Green ... the government has filed its factual return under the procedures, under the long-established habeas procedures under [section] 2243. [T]he burden is now on us. She has already ruled that with respect to secret information or classified information, [t]here are the safeguards that will govern. And it is simply on us now to adduce and present evidence to try ... to shoulder the burden we have.

If I'm not mistaken, when Ben writes of "few known rules and procedures," I think he is referring
primarily
to the fairly discrete question of how classified information should be treated in these proceedings. I agree that this is an important question but one that is not unknown to trial court judges in habeas and other contexts.

Although I (like Justice Kennedy) am fairly confident that Judge Lamberth and his colleagues will handle classified information in a fair and careful manner (indeed, probably with
too much
deference to the government
—
Kennedy's citation to
Reynolds
was decidedly not my favorite part of the opinion)
—
I would certainly be receptive to thoughtful legislative consideration of just how classified information should be handled in these cases. For example, I've repeatedly argued
—
see, e.g.,
here
,
here
and
here
—
that there is no justification for the executive to have classified the facts about how we have interrogated the detainees, particularly since that information is
known
to the detainees themselves, and they are (in theory) free to share it with the world. I would welcome a law clarifying that what our government does to detainees in its custody is
not
classified information.

In his dissent, the chief justice also mentioned questions of access to military officers overseas who might have relevant information. I'll bet habeas courts could easily deal with such issues
—
but if they fail, sure, a discrete statute specifying how to deal with that question might be in order, too.

Apart from these fairly specific questions, however, are there other "rules of the road" that are undefined in the ordinary habeas procedures and that Congress should thus prescribe? I can't think of many. And so while perhaps there are some discrete areas that could benefit from tailored legislative specifications, the basic framework of habeas corpus law should be more than adequate to the task.

Marty Lederman teaches constitutional law at the Georgetown University Law Center. He was deputy assistant attorney general in the Department of Justice's Office of Legal Counsel 2009-10 and an attorney advisor in OLC 1994-2002. He has been a regular contributor to several legal blogs, including Just Security, Balkinization, and SCOTUSblog.